01A34206_r
10-27-2003
Helen C. Messer, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.
Helen C. Messer v. Department of the Navy
01A34206
October 27, 2003
.
Helen C. Messer,
Complainant,
v.
Hansford T. Johnson,
Acting Secretary,
Department of the Navy,
Agency.
Appeal No. 01A34206
DECISION
Complainant filed a timely appeal with this Commission from a final
decision (FAD) by the agency dated May 22, 2003, finding that it was
in compliance with the terms of two settlement agreements, executed
on November 9, 2001 and August 12, 2002. See 29 C.F.R. � 1614.402;
29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.
The November 9, 2001 settlement agreement provided, in pertinent part,
that:
4.a.(4) Speak with [Captain] regarding maintaining a professional
relationship between his point of contact and the Complainant on these
programs.<1>
The August 12, 2002 settlement agreement provided, in pertinent part,
that:
4.a.(4) In the event that an F20 opportunity does not avail itself to
[Complainant], [Complainant] will have first consideration for the
assignment of any additional workload similar to her current role as
point of contact for ACDS training in support of the ILS team. In order
to directly address and alleviate the problem(s) that have brought this
complaint forward, the command will clearly establish and communicate that
the relationship between the Integrated Logistics Coordinator (ILS) and
the Training point of contact are parallel (independent but cooperative)
in nature. The command will clearly communicate to all related personnel
(Complainant's chain of command, the current Tactical Control Systems
Branch Head, and the current ILS Coordinator) that the ILS Coordinator
does not have the authority to directly task, direct or intervene in the
responsibilities of the Training point of contact. The Department Head
will review the workload for the FY03 and FY04 planning cycles ending
1 October 2003 and identify the aforementioned workload if any.<2>
By letter to the agency dated April 18, 2003, complainant alleged without
elaboration that the agency breached provision 4.a.(4) of the November 9,
2001 settlement agreement and provision 4.a.(4) of the August 12, 2002
settlement agreement, and requested that her complaints be reinstated.
In its May 22, 2003 FAD, the agency found no breach. Regarding
provision 4.a.(4) of the November 9, 2001 settlement agreement, the
agency determined that on June 20, 2002, the Commission affirmed the
agency's finding of no breach.
Regarding provision 4.a.(4) of the August 12, 2002 settlement agreement,
the agency found that it was not aware of any specific incident relating
to a breach. The agency, however, stated that on August 28, 2002, an
agency official met with complainant's supervisors and team leader to
review roles and responsibilities in support of tasking sponsored by
PMS461. The agency further stated that after a review of the current
organizational structure, programs, role of Logistics Coordinator
and training support for the projects, each person acknowledged their
understanding of expectations and pledged their support for management
practices.
EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement
agreement knowingly and voluntarily agreed to by the parties, reached at
any stage of the complaint process, shall be binding on both parties.
The Commission has held that a settlement agreement constitutes a
contract between the employee and the agency, to which ordinary rules
of contract construction apply. See Herrington v. Department of Defense,
EEOC Request No. 05960032 (December 9, 1996). The Commission has further
held that it is the intent of the parties as expressed in the contract,
not some unexpressed intention, that controls the contract's construction.
Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795
(August 23, 1990). In ascertaining the intent of the parties with regard
to the terms of a settlement agreement, the Commission has generally
relied on the plain meaning rule. See Hyon O v. United States Postal
Service, EEOC Request No. 05910787 (December 2, 1991). This rule states
that if the writing appears to be plain and unambiguous on its face,
its meaning must be determined from the four corners of the instrument
without resort to extrinsic evidence of any nature. See Montgomery
Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).
Provision 4.a.(4) of the November 9, 2001 settlement agreement
Regarding provision 4.a.(4) of the November 9, 2001 settlement
agreement, we find that the agency properly determined that complainant
filed an appeal with the Commission, regarding breach of the same
provision. Specifically, complainant filed an appeal from the agency's
February 1, 2002 FAD finding no breach of provision 4.a.(4) of the
November 9, 2001 settlement agreement to the Commission. The record
reveals that complainant claimed that while the agency had accomplished
the requirements of provision 4.a.(4), there was no positive, working
relationship between her and the point of contact. The Commission affirmed
the agency's finding of no breach of provision 4.a.(4) of the settlement
agreement. Messer v. Department of the Navy, EEOC Appeal No. 01A22178
(June 11, 2002). Upon review, we find that the present breach claim
regarding provision 4.a.(4) has already been addressed by the Commission
in its decision of June 11, 2002, wherein it found no breach. Therefore,
the Commission determines that no available remedy is currently available
to complainant relating to this provision.
Provision 4.a.(4) of the August 12, 2002 settlement agreement
Regarding provision 4.a.(4) of the August 12, 2002 settlement agreement,
we note in its FAD, the agency stated that an agency official met
with complainant's supervisors and team leader to review roles
and responsibilities in support of tasking sponsored by PMS461. The
agency further stated that after a review of the current organizational
structure, programs, role of Logistics Coordinator and training support
for the projects, each person acknowledged their understanding of
expectations and pledged their support for management practices per
provision 4.a.(4) of the August 12, 2002 settlement agreement.
The Commission determines, however, that the record contains no
documentary evidence reflecting the agency fulfilled its affirmative
obligations identified in this provision. Furthermore, the agency
in its FAD is silent concerning the agency obligations identified in
the first sentence of provision 4.a.(4). Specifically, we note that
the record contains no evidence reflecting that the agency provided
complainant with the �first consideration� for the assignment of any
additional workload similar to her current role as point of contact
for ACDS training in support of the ILS team in the event that an F20
opportunity does not avail itself. We are therefore unable to ascertain
whether the agency complied with provision 4.a.(4) of the August 12,
2002 settlement agreement, given this lack of evidence.
Accordingly, the agency's final decision finding that it did not breach
provision 4.a.(4) of the November 9, 2001 settlement agreement is
AFFIRMED. The agency's final decision finding that it did not breach
provision 4.a.(4) of the August 12, 2002 settlement agreement is
VACATED. The matter is REMANDED to the agency for further processing in
accordance with this decision and the ORDER below.
ORDER
Within thirty (30) calendar days after the date this decision becomes
final the agency is ORDERED to take the following action:
The agency shall supplement the record with evidence clearly showing
that it has complied with provision 4.a.(4) of the August 12, 2002
settlement agreement. In particular, the agency must provide documentation
reflecting that complainant was provided with the first consideration for
the assignment of any additional workload similar to her current role as
point of contact for ACDS training in support of the ILS team in the event
that an F20 opportunity does not avail itself; that the command clearly
established and communicated that the relationship between the Integrated
Logistics Coordinator and the Training point of contact are parallel;
that the command clearly communicated to all related personnel that the
Integrated Logistics Coordinator does not have the authority to directly
task, direct or intervene in the responsibilities of the Training point
of contact; and that the Department Head will review the workload for
the Fiscal Years 2003 and 2004 planning cycles ending October 1, 2003,
and identify any workload, as identified above.
Thereafter, the agency shall issue a new decision concerning whether it
breached provision 4.a.(4) of the August 12, 2002 settlement agreement.
A copy of the new decision must be sent to the Compliance Officer as
referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the Office of Federal Operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action in
an appropriate United States District Court within ninety (90) calendar
days from the date that you receive this decision on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
If you file a civil action, you must name as the defendant in the
complaint the person who is the official agency head or department head,
identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court.
"Agency" or "department" means the national organization, and not the
local office, facility or department in which you work. If you file
a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 27, 2003
__________________
Date
1The November 9, 2001 settlement agreement
also provides that Combat Direction Systems Activity to return the
responsibility of the Block 0, Block 1 and SDE training programs
to complainant under a different supervisor by December 15, 2001;
and restore complainant's 10 days leave by December 15, 2001. Those
provisions are not at issue in the instant appeal.
2The August 12, 2002 settlement agreement also provides for a personnel
specialist and complainant's immediate supervisor to work with complainant
to develop a training curriculum leading to an undergraduate degree
and meeting 1550 series criteria; the training office would contact an
HRSC East training coordinator within 15 days, to negotiate a curriculum
to improve conflict handling and leadership skills for current Branch
Heads and schedule such training; and an agency official would explore
opportunities for complainant within the F20 Division's Interoperability
Branch. Those provisions are not at issue in the instant appeal.